Archive | Hostile Environment Harassment Law

U.S. Commission on Civil Rights Testimony on the First Amendment and Anti-Muslim/Anti-Islam Speech

I was invited to testify on this subject at today’s U.S. Commission on Civil Rights briefing on Federal Civil Rights Engagement with the Arab and Muslim American Communities Post 9/11, so I thought I’d pass along my written remarks. You can read them in PDF form here, or in plain text below (though without the footnotes). My sense from the questions was that at least some commissioners (and not only the conservative ones) found the subject matter of the remarks interesting.

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October 29, 2012

U.S. Commission on Civil Rights
624 9th St., NW
Washington, DC 20425

Dear Members of the Commission:

I entirely agree that the religious freedom rights and free speech rights of Muslim Americans, as well as all other Americans, should be protected. I have publicly spoken out, for instance, in favor of applying religious accommodation law to Muslim employees as well as to others. I have condemned attempts to criticize Muslim office-holders for taking their oath of office on a Koran. I have spoken in favor of extending mosques the same property rights extended to other property owners, and against attempts to exclude mosques from particular areas. And I agree that the government should take steps to make Muslim Americans, like Americans of all religions, feel welcome in America.

At the same time, attempts to make adherents of minority religions feel welcome should not end up suppressing the free speech rights of others who seek to criticize those religions. Islam, like other belief systems — Catholicism, Scientology, libertarianism, feminism, or what have you — merits evaluation and, at times, criticism. And under the First Amendment, even intemperate and wrong-headed criticism is fully constitutionally protected. Yet unfortunately attempts at suppression of criticism of Islam have been distressingly frequent.

Universities: Thus, for instance, San […]

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D.C. Orders Bar to Stop Offering “Marion Berry’s Dirty Asian Summer Punch”

From the Washington Post:

Walk into The Pug today, and you can order a beer or a shot, but you can no longer order “Marion Berry’s Dirty Asian Summer Punch.”

The punch, a fruity vodka concoction, was whipped up by the H Street NE bar’s owner, Tony Tomelden, as an admittedly crude but satirical tribute to D.C. Council member Marion Barry’s controversial comments this year criticizing Asian shop owners and Filipino nurses. “The Ward 8 Special,” he called it.

“I put it up there for a reason,” Tomelden said. “He gets away with this stuff continuously.”

There’s more: Drawn on a chalkboard behind the bar was an advertisement for the punch featuring an Asian caricature — bald, with slanted eyes and buck teeth. “No tickee, no punchee,” the sign says.

As I said, admittedly crude. To many, just plain offensive. But illegal?

The sign was removed Friday after a city agency threatened to drag Tomelden before the D.C. Commission on Human Rights in a rare display of the city’s little-known power to regulate speech in places of public accommodation.

I have argued that such “hostile public accommodations environment” theories violate the First Amendment even when patrons claim that a business’s decor inside the business is offensive based on race, religion, sex, sexual orientation, and so on. (See also Daniel Koontz, Hostile Public Accommodations Laws and the First Amendment, 3 NYU J. Law & Liberty 197 (2008). If a restaurant or a bookstore, for instance, wants to hang Confederate flags, Playboy centerfolds, pictures hostile to Catholicism, or insults of Republicans (in those cities which ban public accommodations discrimination based on political affiliation) or whatever else, it has a First Amendment right to do that, I think, even if some patrons as a result feel offended.

This, I think, […]

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“Civil Rights Agenda” Files Antidiscrimination Complaint Against Chick-fil-A Based on Chick-fil-A’s Speech

The complaint, filed with the Illinois Department of Human Rights, alleges that Chick-fil-A discriminated against gays in public accommodations. Now none of the allegations suggest that Chick-fil-A employees refused to serve gays, or treated gay customers differently from straight ones. Rather, the argument is that “the company’s widely published corporate philosophy, culture and policies make clear to [complainant] that as an unmarried homosexual in a ‘non-traditional’ family unit, I am inferior to married heterosexuals and therefore, unwelcome, objectionable and unacceptable to Chick-fil-A.”

The Civil Rights Agenda press release puts the matter well:

The complainants are a same-gender family with a daughter. Chick-fil-A used to be one of their favorite places to eat until Mr. Cathy’s latest statements were reported so widely. Now, they feel completely unwelcome in the establishment.

Despite the Agenda’s protestations (“The Civil Rights Agenda is quick to point out that this is not a First Amendment Issue”), the complaint is all about speech: Because the corporation’s officials are expressing views that disapprove of homosexuality, the theory goes, the government is supposed to hold the company liable — again, without any evidence that any particular person was denied service because of his homosexuality.

I have argued that such “hostile public accommodations environment” theories violate the First Amendment even when patrons claim that a business’s decor inside the business is offensive based on race, religion, sex, sexual orientation, and so on. (See also Daniel Koontz, Hostile Public Accommodations Laws and the First Amendment, 3 NYU J. Law & Liberty 197 (2008). If a restaurant or a bookstore, for instance, wants to hang Confederate flags, Playboy centerfolds, pictures hostile to Catholicism, or insults of Republicans (in those cities which ban public accommodations discrimination based on political affiliation) or whatever else, it has a First Amendment right to […]

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The Confederate Flag, the First Amendment, and the ACLU

Apropos yesterday’s Confederate flag / First Amendment post, here’s a story from March: A Delaware Department of Transportation employee had, for 17 years, a decorative plate that said “REDNECK” on a Confederate flag background. A coworker complained, charging “harassment,” and the department threatened him with discipline “if he continued to drive his vehicle with the plate on state property.” But after the ACLU of Delaware intervened, the Department apparently decided not to reprimand him, even if he continued displaying the plate.

Note that the government acting as employer has much more power over on-the-job speech of its employees than it does over the speech of private citizens and private employees (more on that here). In particular, it’s possible that the Department could restrict the display of items that cause substantial tension among coworkers, though it sounds like in this instance the Department ultimately chose not to do this (whether based on a judgment that the plate wasn’t disruptive enough, a desire to avoid litigation, or something else). […]

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EEOC: Wearing Confederate Flag T-Shirts May Be “Hostile Work Environment Harassment”

From Dawson v. Donahoe (EEOC Feb. 8, 2012) (just uploaded onto Westlaw several days ago):

[A] claim of harassment is … actionable if the harassment to which Complainant has allegedly been subjected was sufficiently severe or pervasive to alter the conditions of Complainant’s employment….

In this case, Complainant has alleged that he notified the Postmaster as early as March 2011 of employees repeatedly wearing Confederate flag t-shirts to work, but it was not until May 2011, that the Postmaster finally instructed the supervisor to start sending the employees home to change. Complainant argues that the Postmaster “procrastinated in taking action on my complaint” and that he filed the complaint, in part, because of the Postmaster’s “lack of concern for my feelings associated with this matter.” Complainant explained that he was offended by the t-shirts because he saw the Confederate flag as a symbol of racism that evoked the history of slavery. Complainant also alleged that he is now fearful of one the employees he complained about because the employee has started parking his car off Agency properly and Complainant believes he might have a weapon in his car.

Based on the circumstances alleged by Complainant, we conclude that he has stated a viable claim of discriminatory harassment which requires further investigation…. [U]nder certain circumstances, a limited number of highly offensive slurs related to a federal employee’s race may in fact state a claim or support a finding of discrimination under Title VII. Moreover, Complainant has alleged that it took the Postmaster nearly two months to finally take action to stop his coworkers from wearing the offensive t-shirts….

This case involved a government employer, but the EEOC applies precisely the same standards — speech is actionable if it is “severe or pervasive” enough to create a hostile, abusive, or offensive work […]

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Now There’s a Harassment Claim That Was Quite Rightly Rejected

From Walker v. Jackson (EEOC Oct. 6, 2011):

On December 1, 2011 [sic], Complainant filed a formal EEO complaint alleging that he was subjected to harassment and reprisal on the basis of his religious beliefs (Pentecostal). Briefly, the complaint alleged that, on November 18, 2010 [sic], Complainant was the recipient of an email from the Acting Director, sent to the NCEA [EPA’s National Center for Environmental Assessment] global list-serve (which includes Complainant and all other NCEA employees), announcing an on-site celebration of a same-sex marriage of an employee which read as follows:

[Employee A] and his partner [named] are getting married this Sunday. The IO is sponsoring an informal celebration to congratulate [Employee A] on this happy event. Please feeI free to drop by the IO conference room on Thursday, October 7 at 4:30 P.M. to wish them well.

Thirteen days later, on October 18, 2010, Complainant responded to the Acting Director’s email, with a copy to the NCEA global list-serve, with the following message:

I feel your message announcing the celebration of the “union” of [Employee A] and his “Partner” was offensive and insensitive to my religious faith as a Christian. I think it is general knowledge that the Christian faith only condones “marriages” between men and women, not men and other men. As acting Office Director, I feel you could have been more “sensitive” and “neutral” with regards to this issue.

The next day, NCEA employees sent approximately 15-20 emails on the global list-serve (including Complainant) congratulating Employee A on his marriage. None of these emails specifically mentioned Complainant or his email. The record does show that two employees did email Complainant personally (not sent to the NCEA global list-serve) and expressed the opinion that Complainant’s email was insensitive because it was sent to

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Anti-Gay Statements About Fellow Building Resident = Liability for “Hostile Housing Environment Harassment”

That’s what seems to be the holding of Gilbert v. 7355 South Shore Condominium Ass’n & Shelley Norton (Chi. Com. Hum. Rel’s July 20, 2011), leading to damages of $2100, fines of $1200, and “reasonable attorney fees and associated costs,” which I suspect are likely to be in the tens of thousands of dollars. The statements were said by a condo association manager about a condo owner, but as I’ll note below the logic of this case would likewise apply to tenants speaking about another tenant.

The case is complex, and involves unsuccessful claims of sexual orientation discrimination and race discrimination. (The plaintiff claimed various forms of discriminatory treatment — including eviction — by the defendant, but the commission held against the plaintiff, because it found that the plaintiff would have been subject to the same treatment even without regard to the defendant’s bias.) But here’s what seems to be the heart of the harassment claim, which the commission did accept (emphasis added):

[Vernita] Gray has provided ample direct evidence of Respondents’ discriminatory animus and creation of a hostile housing environment for Gray based on her sexual orientation. This included: Gray’s testimony that in March 2000, Norton told her that she would not turn the building into a Halsted Street; Butler’s testimony that Norton stated in June 2000 in relation to Gray that she was tired of this “gay ass shit”; Shields’ testimony that within the first couple of months of moving in, Norton told her that the walls were thin and intimate conduct could be heard, that she was not happy with Gray moving in because Gray did not respect the building’s culture, and that she did not want lesbian conduct in the building; and McMikel’s testimony that within a few months after she moved in during February

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